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Friday, January 09, 2009

Not all smiles at NSW ADT

NSW Attorney General John Hatzistergos MLC

In his overview of the first decade of operations of the NSW Administrative Decisions Tribunal, in the Tribunal's Annual Report 2007-2008, President Judge O'Connor, in wonderfully polite annual report language, highlighted for the Attorney General a few causes of concern:

The apparent absence of policy and principle for what administrative decisions in NSW are subject to review:

In introducing legislation to establish the Tribunal 10 years ago, the then Attorney General
"expressed a broad view as to the administrative decisions that citizens could look forward to seeing reviewed by the ADT. As it has transpired a much narrower range of decisions has been made reviewable. Giving affected persons a right to seek external review remains a choice, in the first instance, for the various portfolios of Government and, ultimately, Cabinet. So far as I am aware, there is no transparent discipline or policy governing the matter. The Tribunal has frequently encountered situations where, within the one Act, there is seemingly inexplicable variation as between the administrative decisions that may be the subject of an application to the Tribunal, and those which may not be. There have been some instances where the review jurisdiction has been removed or reduced by amending legislation, without any public explanation, soon after decisions have gone against an agency."
The failure in NSW to address the issue of further consolidation of existing tribunals:
"While some existing State tribunals were merged into the new ADT, the Attorney noted that as many as 21 State tribunals remained outside its structure. He referred to the values served by consolidation: greater coherence for the public, greater transparency and professionalism, greater ability to introduce good procedures and practices, better use of public resources, avoidance of duplication of similar structures, and the avoidance of perception of conflict of interest where the portfolio department has a substantial involvement in proceedings in a portfolio tribunal. As I have noted in previous annual reports, major reforms reflecting these values have occurred since 1997 in the United Kingdom, Victoria and Western Australia. The Queensland government has announced the creation of a new merged tribunal for that State, commencing March 2009. The one somewhat similar development in NSW since 1997 has been the creation in 2002 of a Consumer, Trader and Tenancy Tribunal, merging three fair trading tribunals."
The matter of the long overdue statutory review of the Act which President O'Connor hoped a year ago was soon to appear.
"The original ADT Act provided for two statutory reviews after a period of experience of its operation. The first was to concern the operation of the Tribunal itself. The second was to concern the operation of the Act as a whole. The first review (under s 146) was undertaken by a Parliamentary Committee from 2000 and 2002, with a final report late in 2002. The second review (under s 147) was imposed on the Minister. The Act fixed the commencement date as 2002 and the report date as 2003. On behalf of the Minister, the Department commenced the review in 2003. The public submissions process ended in 2004. That report is now expected to be delivered in the Spring Session, 2008 in conjunction with a bill making a number of amendments to the ADT Act."
Accommodation and rates of pay for Tribunal members need urgent attention:
"I referred in last year’s annual report to the increasingly unsatisfactory level of accommodation and administrative support for Members. No progress has been achieved. Similarly, there has been no adjustment to their remuneration for several years despite adjustments having occurred regularly in the usual way to the remuneration of full-time judicial officers and full-time State tribunal members doing comparable work."
Support services haven't been too flash either:
"Between 19 December 2007 and 10 January 2008 the Tribunal saw the collapse of the internet and email services supplied by the Department. They returned intermittently during the period, and were fully restored on 11 January 2008. As the Tribunal, unlike the Courts, stays open on a usual basis at this time of the year, this was a major disruption to services."
A couple of FOI/privacy related issues from the report:

Applications for review in the ‘Information Law’ category -Freedom of Information 117, and privacy 36, account for about 40% of the workload of the General Division the same as other recent years. After increasing markedly four years ago, it had since stayed at that level. The President is still keen to see action on serial appellants and intends to make a general submission to the Ombudsman's review of the FOI Act.

Generally time to resolve reviews is slowing
"As at the end of the current year, the average time from filing to disposal of primary applications in the Tribunal was 0.65 of a year (i.e. 7.8 months). The average time from filing to disposal in the case of an appeal was 0.55 of a year (i.e. 6.7 months). The collective average was 0.64 (i.e. 7.7 months). There has been a decline in the speed of disposal, as compared to five years ago, when the figures were 0.54 for primary applications, 0.31 for appeals, and collectively 0.52 (i.e. 6.3 months). The collective average has now been slowing incrementally each year. The Divisional Heads have been asked to suggest ways in which the turnaround time can be improved."

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